Judge: Ronald F. Frank, Case: 23TRCV01737, Date: 2023-11-22 Tentative Ruling
Case Number: 23TRCV01737 Hearing Date: February 22, 2024 Dept: 8
Tentative Ruling¿
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HEARING DATE: February 22, 2024¿
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CASE NUMBER: 23TRCV01737
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CASE NAME: Dora D. Holden v.
Jaguar Land Rover North America, LLC, et al.
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MOVING PARTY: Plaintiff,
Dora D. Holden
RESPONDING PARTY: Defendant,
Jaguar Land Rober North America, LLC
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TRIAL DATE: February 10, 2025
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MOTION:¿ (1) Motion to Compel the Deposition of Defendant’s Person Most
Knowledgeable and Production of Documents
¿ Tentative Rulings: (1) The Court is
inclined to grant the compelled deposition but much more than 10 days out, and
to grant production of many of the 18 categories of documents as discussed in
detail below. The Court will need explanation
of the defense delay in offering any alternative deposition date until the
motion had been pending for nearly 2 months, and confirmation of the assertion
that the earliest available date for Defendant’s PMK to attend a deposition is
not until June of 2024. The Court will
also invite oral argument as to why the Opposition did not respond to the motion
to compel production of 18 categories of documents to be produced at the PMK deposition
despite Plaintiff’s Separate Statement arguing each of the defense
objections. Tentative rulings as to each
of the 18 categories are included below
I. BACKGROUND¿¿
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A. Factual¿¿
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Plaintiff, Dora D. Holden (“Plaintiff”) filed this action
against Defendant Jaguar Land Rover North America, Inc, Carwell, LLC dba Jaguar
Land Rover South Bay on June 1, 2023. The Complaint alleges causes of action
for: (1) Violation of Song-Beverly Act – Breach of Express Warranty; (2)
Violation of Song-Beverly Act – Breach of Implied Warranty; (3) Violation of
the Song-Beverly Act § 1793.2; and (4) Negligent Repair
On October 26, 2023, Plaintiff served an Amended Notice of
Deposition of Defendant’s Person Most Knowledgeable (“PMK”) detailing the categories
for examination of witness and including categories of requests for production
of documents at the deposition. The Deposition was originally scheduled by
Plaintiff for November 17, 2023. On November 3, 2023, Plaintiff notes that
Defendant served a written response to Plaintiff’s notice with “boilerplate”
objections, and failed to provide a PMK witness. The Opposition asserts that Defendant
served written objections to Plaintiff’s first deposition notice on October 11,
2023, and served written objections to the amended PMK notice on November 3,
2023.
Plaintiff asserts that despite meet and confer efforts by
Plaintiff, Defendant has not “adequately” responded to either of Plaintiff’s
two deposition notices. Additionally, Plaintiff contends that Defendant has not
yet proffered all of the responsive documents or stated its agreement to
provide responsive documents to the associated Request for Production of
Documents. As such, Plaintiff has requested an order striking all Defendant’s
objections and compelling Defendant to produce a qualified PMK witness and all
responsive documents.
B. Procedural¿¿
On December 12, 2023, Plaintiff filed
this Motion to Compel the Deposition of Defendant’s PMK and Production of
Documents. On February 7, 2024 Jaguar Land Rover North America, LLC filed an
opposition. On February 14, 2024, Plaintiff filed a reply brief. Plaintiff’s Separate Statement addressing the
18 categories of documents to be produced begins with 10 pages of legal
argument before the first document category is mentioned, but each of the 18
couplets of request and response incorporate those first 10 pages, making
efficient use of Separate Statement space rather than repeating the legal arguments
on the objections 18 times. Defendant’s
opposition makes no mention of the objections to document categories and no
defense separate statement was submitted.
II. ANALYSIS¿
At the outset, the Court will be
granting the motion and issuing an order compelling the attendance of a Jaguar
PMK to appear for deposition. After
ascertaining the “first available” date defense counsel first offered to
plaintiffs for the PMK deposition during the pendency of the this motion, the
Court will seek oral argument from defendant was to why no date was offered
until nearly 2 months after this motion was filed, which concerns the Court at
several levels and which undercut the defense argument in the minimalist
opposition brief that the PLAINTIFF, not defendant, had failed to
satisfactorily meet and confer.
A. Legal
Standard
Code of Civil Procedure
section 2025.450, section (a) provides:
“If, after service of a deposition notice, a party to the action
or an officer, director, managing agent, or employee of a party, or a person
designated by an organization that is a party under Section 2025.230, without
having served a valid objection under Section 2025.410, fails to appear for
examination, or to proceed with it, or to produce for inspection any document,
electronically stored information, or tangible thing described in the
deposition notice, the party giving the notice may move for an order compelling
the deponent’s attendance and testimony, and the production for inspection of
any document, electronically stored information, or tangible thing described in
the deposition notice.”
(Code Civ. Proc., § 2025.450,
subd. (a).)
The motion must “be
accompanied by a meet and confer declaration under Section 2016.040, or, when
the deponent fails to attend the deposition…by a declaration stating that the
petitioner has contacted the deponent to inquire about the nonappearance.” (Code
Civ. Proc., § 2025.450, subd. (2).) A court shall impose monetary sanctions if
the motion to compel is granted unless the one subject to sanctions acted with
substantial justification or other circumstances would make the imposition of
the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)
B. Discussion
Meet and Confer
Counsel for Plaintiff contends that
on October 26, 2023, he sent a meet and confer letter to Defendant’s counsel
regarding the taking of the deposition of Defendant’s PMK, and encouraged
counsel for Defendant to provide alternative dates for the PMK deposition.
(Declaration of Joshua Kohanoff (“Kohanoff Decl.”), ¶ 25.) However, Plaintiff
contends that Defendant’s PMK witness failed to appear for this deposition as
properly noticed, and no reasonable alternative PMK deposition dates were
offered by Defendant’s counsel until long after this motion was filed.
(Kohanoff Decl., ¶ 25.) After this series of events, Plaintiff’s counsel noted
he is willing to further meet and confer, but fears Defendant is not likely to
provide a PMK witness or supplement its written responses absent an order from
this Court. (Kohanoff Decl., ¶ 27.)
In opposition, Defendant argues
Plaintiff failed to meet and confer or make an inquiry about nonappearance as
required by Code of Civil Procedure § 2025.450(b)(2). Instead, Defendant
asserts that Plaintiff’s attempt to meet and confer was by re-noticing the PMK
deposition, instead of making a good faith inquiry to reschedule the deposition
prior to filing a motion to compel. Disappointingly, Defendant did not offer a
date for the PMK deposition until February 6, 2024, nearly 2 months after this
motion to compel was filed. There is no explanation
in defense counsel’s declaration as to the reason for such a prolonged delay in
offering a new date for a deposition that Defendant agrees is appropriate to
take place in this case.
¿¿¿ Document
Categories at PMK Deposition
The motion to
compel also seeks production of 18 categories of documents at the PMK
deposition. While Plaintiff prepared a
separate statement concerning the defense objections to each and every category
of documents with no indication of willingness to produce a single page of responsive
documents, the threadbare opposition brief makes no mention at all of the duces
tecum for the PMK deposition or any response to Plaintiff’s separate statement. Even with the passage of time since this motion
was filed in December, there was still no supplemental response, any indication
that some of the objections might be withdrawn so that some responsive documents
would be produced, and in short defendant seemingly ignores the document demand
portion of this motion while inviting monetary sanctions for willful discovery
misuse.
For purposes of enabling counsel to prepare for oral argument, the
Court sets forth below some basic parameters for what it typically orders with
respect to certain of the discovery requests embraced by this motion. The Court typically orders and limits
production of documents (including ESI) in a Song-Beverly single-vehicle case as
follows:
1.
Purchase and/or lease
contract concerning the subject vehicle must be produced.
2.
Repair orders and invoices
concerning the subject vehicle must be produced, including the “accounting”
copies showing the hours and dates of activity by dealer personnel.
3.
Communications between the plaintiff
and the warrantor/manufacturer and/or its servicing dealers, and communications
between Plaintiff and the manufacturer’s factory representative and/or call
center concerning the subject vehicle.
4.
Warranty claims submitted to
and/or approved by Defendant concerning the subject vehicle.
5.
The applicable Warranty
Policy and Procedure Manual published by defendant and provided to its
authorized repair facilities, within the State of California, for the year the
lawsuit was filed. If a separate written
policy, procedure, or manual exists regarding repurchases or buy backs
appliable to vehicles sold or leased in California, that would also be required
to be produced for the year the lawsuit was filed and/or the year Plaintiff
contends the vehicle became qualified for repurchase (such as upon satisfaction
of the Presentation Element of a Song-Beverly cause of action under Section
1793.2(d)(2) or 1793.22). Such documents
would be produced subject to a protective order.
6.
Any internal analysis and/or
investigation regarding the primary or other recurring alleged defects claimed
by plaintiff in her/his vehicle, applicable to the same year, make and model of
the subject vehicle. The Court tends to
focus on the claimed symptom experienced by the plaintiff as described in the
dealers’ repair records, rather than a broad and vague characterization of the
claimed defect as described by counsel in the litigation. For example, if the customer experienced a black
Infotainment screen when shifting in reverse, or a harsh engagement or clunk of
the transmission when accelerating from 2nd to 3rd gear, those
symptoms rather than any other nature of malfunction of the Infotainment system
or transmission would be the narrowing of scope of such internal analysis or
investigation to be produced.
7.
Other customers’ complaints
similar to the alleged defects claimed by plaintiff, limited to vehicles
purchased in California for the same model year, make and model of the subject
vehicle. The other customer complaints
again would be limited in scope to the description of the symptom as shown on
the dealer repair records. The Court
typically discusses with counsel the type of documents that may be required and
the format for a production of documents such as in a sortable Excel
spreadsheet that lists a compilation or summary of voluminous documents.
8.
Recall Notices for vehicles
purchased in California for the same year, make and model of the subject
vehicle, whether mentioned in the repair history of the subject vehicle or not.
9.
Technical Service Bulletins for
vehicles purchased in California for the same year, make and model of the
subject vehicle, that reference repair complaints or symptoms this plaintiff
reported in the repair history.
With respect to the 18 categories, the Court’s preliminary ruling
on the objections raised by defendant are as follows:
1.
The request for the deponent
to bring JLRNA’s “entire original file” regarding plaintiff’s vehicle is rather
vague. This is more a scope for an
expert, not a PMK, as there may be no such thing as a “file” for the subject
vehicle. Most of the defense objections
do not pertain to this category in the duces tecum and would be overruled, but the
Court would sustain the vagueness, assumed facts, and ambiguity objections.
2.
The request for policies and
procedures for JLRNA authorized dealers in handling customer complaints will be
compelled, the objections other than attorney-client privilege being overruled. As to the privilege objection, the Court will
require a privilege log for JLRNA to identify any documents being withheld on privilege
grounds.
3.
This category seeking communications
between the Anaheim Hills dealer and some unnamed person cannot be compelled
because it does not indicate the other party to the communications. If Plaintiff intends to seek documents
between the dealer and JLRNA regarding the subject vehicle, this category does not
so state; a separate or amended RFP could be served to obtain those responsive documents.
4.
[There was no Category 4 in the
Separate Statement]
5.
This category seeks communications
with a dealer at a different address in Anaheim Hills, but it suffers from the same
problem as category 3.
6.
Category 6 seeks all documents
JLRNA maintains “regarding” the subject vehicle. The Court is inclined to sustain some of the objections
to this category including privilege and overbreadth. Normally, the parties’ meet and confer could
narrow the scope of limit the breadth of what is being sought here, e.g.,
warranty records, importation records, transportation records, etc. But this is apparently not a normal
relationship between counsel. The Court will
discuss whether production of other more narrowly tailored categories will
address what plaintiff sought by this category.
7.
This call seeks “handwritten
notes” by anyone regarding plaintiff’s repurchase request. Subject to the privilege limitations that
in-house counsel or that a JLRNA employee might have reflecting notes of a
discussion with inhouse or outside counsel, and subject to the limitation on
production of documents in a party’s care, custody or control, the Court would compel
production of these responsive documents.
8.
Call 8 has no scope limitation
on the subject matter of handwritten notes as category 7 did. See the Court’s evaluation of a similarly
overbroad scope in Category 6.
9.
Call logs, a term of art in the
motor vehicle industry as to records made of phone calls or emails from or with
the plaintiff, are typically produced without objection in Lemon Law litigation. Subject to the privilege limitations that
in-house counsel or that a JLRNA employee might have a call log of a discussion
with inhouse or outside counsel, and subject to the limitation on production of
documents in a party’s care, custody or control, the Court would compel
production of these obviously discoverable documents.
10. The PMK’s job description, assuming one exists in writing, should be
produced and objections to this category would be overruled.
11. Category 11 seeks documents that JLRNA reviewed in deciding
whether to or how to respond to Plaintiff’s buyback requests. While this category on its face appears to
assume that plaintiff made a buyback request and that JLRNA made a response, and
subject to the privilege limitations that communications with in-house counsel
or outside counsel would not be produced but identified in a privilege log, the
Court would compel production of these responsive documents if any exist.
12. Call 12 seeks document the deponent PMK consulted in preparing for
the deposition. The Court sustains the attorney
work product and attorney-client privilege objections to this category.
13. Policy and procedure documents
for Song-Beverly Act compliance including any “buy back manual” provided to
decision makers would be ordered to be produced, subject to the privilege
limitations that communications with in-house counsel or outside counsel would not
be produced but identified in a privilege log.
14. Call 14 is overly broad because it is not limited to California or
the time period when Plaintiff’s vehicle was subject to consideration for a buy
back. This category would normally be
narrowed (as per the Court’s outline of what it normally orders in such cases
above) in the meet and confer process, avoiding Court intervention. The Court encourages counsel to do so
15. This category, probably a subset of Category 13, is overly broad and
would need to be narrowed to pertain to California and the time period when
Plaintiff’s vehicle was subject to consideration for a buy back.
16. The Court’s view on this call is the same as call 15.
17. As noted above, the TSB category is one the Court normally grants
a motion to compel, but limited to a repair complaint or symptom that Plaintiff
reported during the repair history.
Vehicles have a host of technical literature generated for repair
technicians to use as to every system in a modern-day vehicle, and repair or
installation instructions for nearly every component or body panel. It is overly broad to require production of
every technical bulletin for the same make and model and model year as
plaintiff’s and it is not reasonably calculated to lead to the discovery of
admissible evidence as to repair procedures or bulletins for repair complaints
plaintiff did not experience.
18. Documents that “support” an affirmative defense in the case appears
to the Court to call for attorney work product, because which of the 28 affirmative
defense JLRNA “intends to assert in this action” would involve defense counsel’s
mental impression and case evaluation.
The Court would sustain the objection to this category.
The Court will entertain oral argument as to a reasonable time period
for defendant to gather responsive documents, especially if the PMK deposition will
not take place until June of 2024.